Opinion
No. CV 06-4006214 S
November 22, 2006.
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendants have moved to dismiss the plaintiff's complaint on the grounds that the court lacks subject matter jurisdiction due to mootness and the plaintiff's failure to exhaust administrative remedies.
Facts
The plaintiff alleges that the defendants are operating and conducting business without all of its members as required by Connecticut General Statutes § 17a-581(b). The Psychiatric Security Review Board ("PSRB") is required to have six members including a psychiatrist and a psychologist. The plaintiff further alleges that none of the members of the PSRB is a psychiatrist or a psychologist and, therefore, has no authority to take any actions with respect to the plaintiff.
The plaintiff seeks a permanent injunction ordering the defendants to "at all times . . . have the . . . membership . . . composed of: (1) a psychiatrist . . . (2) a psychologist pursuant to Connecticut General Statutes § 17a-581, . . . six members" in rendering decision as to the plaintiff's confinement, treatment and mental condition. In addition the plaintiff seeks a declaratory judgment stating that the defendants are out of conformance with their enabling legislation; that any decision rendered by the defendants in which a psychiatrist and psychologist did not participate is void ab initio; that the defendants violated the plaintiff's federal and state constitutional rights when it ordered that the plaintiff shall be confined in a psychiatric facility.
The defendants have presented the affidavit of Ellen Weber in support of their Motion to Dismiss. That affidavit contains the following facts. Patrick Arbelo is an acquittee who was ordered committed to the jurisdiction of the PSRB pursuant to Connecticut General Statutes § 17-602 for a maximum term of eight years by order of the Fairfield Superior Court on November 13, 2003, after he was acquitted by reasons of mental disease or defect of the charges of twenty-seven counts of Kidnapping in the First Degree. The plaintiff is currently a patient receiving treatment at Dutcher Services of the Whiting Forensic Division of Connecticut Valley Hospital. The PSRB issued a Memorandum of Decision dated April 27, 2006 concerning the plaintiff. The PSRB is currently comprised of six members. Howard Oakes, Psy.D. fills the position of psychologist on the PSRB. He was appointed by the Governor on September 21, 2006 pursuant to Connecticut General Statutes § 17a-581 to serve until the sixth Wednesday of the next regular session of the General Assembly or until a successor is appointed and has qualified, whichever is longer. Justin Schechter, M.D. fills the position of psychiatrist. He was appointed by the Governor on September 18, 2006 pursuant to Connecticut General Statutes § 17a-581 to serve until the sixth Wednesday of the next regular session of the General Assembly or until a successor is appointed and has qualified, whichever is longer.
Discussion of the Law and Ruling
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
Mootness implicates a court's subject matter jurisdiction. Board of Education v. Town of Naugatuck, 257 Conn. 409, 412, 778 A.2d 862 (2001); Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988).
Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute: "Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law." Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); (2) that the interests of the parties be adverse; McAnerney v. McAnerney, 165 Conn. 277, 283, 334 A.2d 437 (1973); Lipson v. Bennett, 148 Conn. 385, 389, 171 A.2d 83 (1961); (3) that the matter in controversy be capable of being adjudicated by judicial power; Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); and (4) that the determination of the controversy will result in practical relief to the complainant. Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra, 20-21; Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).
State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982).
The injunctive relief which the plaintiff requests is that the PSRB be composed of six members when rendering decisions concerning his confinement and treatment. The PSRB now has six members. There is no actual controversy between the parties. The request for injunctive relief is moot, and, therefore, nonjusticiable.
The plaintiff also seeks a declaratory judgment. The defendants argue that the court is without subject matter jurisdiction as to this claim because the plaintiff has failed to exhaust his administrative remedies. In support of the Motion to Dismiss, the PSRB argues that based on Connecticut General Statutes §§ 4-166 et seq. and 17a-581, it is a state agency, subject to the Uniform Administrative Procedure Act (UAPA), and, therefore, the plaintiff must first seek a declaratory ruling from the PSRB according to General Statutes § 4-175(a) in order to acquire a declaratory judgment. Since the plaintiff did not request a declaratory ruling from the PSRB's decision or its inaction, the PSRB asserts that this court does not have subject matter jurisdiction because an adequate administrative remedy exists.
General Statutes § 4-175 provides in relevant part: "(a) If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (I) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action."
The plaintiff counters that although exhaustion is a threshold issue, an exception is applicable, exhaustion would be futile. The plaintiff argues bias, in that the action before the PSRB "could not result in a favorable decision and invariably would result in further judicial proceedings" as "the only conceivable ruling the PSRB could give would be yes, it has authority."
"[B]ecause the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 252, 851 A.2d 1165 (2004). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided though an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter . . . Exhaustion is required even in cases where the agency's jurisdiction over the proposed activity has been challenged . . . This requirement reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 103, 809 A.2d 492 (2002).
"A claim that an administrative agency has acted beyond its statutory authority or jurisdiction properly may be the subject of an administrative appeal . . . Where there is in place a mechanism for adequate judicial review . . . [i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act — that is, to determine the coverage of the statute — and this question need not, and in fact cannot, be initially decided by a court . . . This general rule is in accord with [the court's] frequently stated observation that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal is designed to test." (Citation omitted; internal quotation marks omitted.) Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989).
"It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings . . . [The Supreme Court has] held that utilizing administrative remedies is not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against the grievant." (Citation omitted; internal quotation marks omitted.) Neiman v. Yale, supra, at 259. There is a presumption "that administrative board members acting in an adjudicative capacity are not biased." Simko v. Ervin, 234 Conn. 498, 508, 661 A.2d 1018 (1995). "To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias . . ." (Internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995).
Connecticut statutes and case law favor an administrative agency's authoritative ability to determine whether it has jurisdiction over the subject matter at issue. Greater Bridgeport Transit v. Local Union 1336, supra, at 438, addressed "whether an administrative agency has exclusive initial power to determine its own jurisdiction in a particular case." Relying on General Statutes § 4-183(g) (now § 4-183(j)), the Court held: "[w]here there is in place a mechanism for adequate judicial review . . . [i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation." (Internal quotation marks omitted.) Id., 439. The Court held therein that pursuant to the general rule, the board union, not the Superior Court, had the authority to determine whether it had subject matter jurisdiction over the issue presented before it. The Court found that an adequate administrative remedy existed and that the Superior Court lacked subject matter jurisdiction. Id., 439-40.
General Statutes § 4-183 provides in relevant part: "(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section a remand is a final judgment."
In the present case, according to the enabling statute, § 17a-581, the PSRB "shall be an autonomous body within the Department of Mental Health and Addiction Services for administrative purposes only." "Administrative purposes only" is defined in General Statutes § 4-38f to include the ability to "[e]xercise any quasi-judicial, rule-making or regulatory authority, licensing and policy-making functions which it may have independent of such department and without approval or control of the department."
"No violation of constitutional rights occurs if an administrative agency is vested with exclusive initial power to determine whether it has jurisdiction in a particular case, so long as there is a provision for adequate judicial review. Absent a patent and unambiguous lack of jurisdiction, a tribunal having general subject matter jurisdiction of a case possesses authority to determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy via appeal from its holding that it has jurisdiction. If a statute authorizes an administrative agency to act in a particular situation, it necessarily confers upon the agency authority to determine whether the situation is one in which the agency is authorized to determine the coverage of the statute — a question that cannot be initially decided by a court . . ." 2 Am.Jur.2d, Administrative Law § 284 (2006).
Based on the foregoing, the PSRB has the ability to determine its own jurisdiction and can entertain the plaintiff's request for a declaratory hearing. As a result, the general rule in § 4-183(g) is applicable. The plaintiff has not exhausted his administrative remedies, therefore, the court lacks subject matter jurisdiction.
Courts have recognized futility exceptions "only infrequently and only for narrowly defined purposes . . ." (Internal quotation marks omitted.) Neiman v. Yale, supra, at 258-59. "An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief." (Internal quotation marks omitted.) Mendillo v. PSRB of Education, 246 Conn. 456, 467, 717 A.2d 1177 (1998). "It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Internal quotation marks omitted.) Simko v. Ervin, supra, at 507.
As discussed previously, the plaintiff's argument that the PSRB does not have the authority to act is contrary to the enabling statute which provides the PSRB with its authority. In Simko, the plaintiffs argued that the futility doctrine applied because "the defendant was the town attorney and allegedly had engaged in ex parte communications with the board, in the form of a letter asking for clarification of the terms of the variance." Simko v. Ervin, supra, at 507. The Court disagreed with the plaintiffs, holding that futility was not present because "the plaintiffs' mere suspicion of bias on the part of members of the board, without more, is not sufficient to excuse them, on grounds of futility, from the exhaustion requirement." Id.
In the present case, the plaintiff has neither requested a declaratory hearing from the PSRB nor presented facts as to the PSRB's bias in denying a declaratory hearing. Thus, the plaintiff has failed to overcome the presumption that the PSRB is unbiased. Id., 508. The plaintiff has not met the futility requirements; therefore, the exhaustion doctrine is still applicable and the court lacks subject matter jurisdiction.
For the foregoing reasons the motion to dismiss is granted.